Hartford Fire Insurance Co. v. Enoch

• Decision Date: 02 July 1906
• Citation: 96 S.W. 393,79 Ark. 475
• Parties: HARTFORD FIRE INSURANCE COMPANY v. ENOCH
• Court: Arkansas Supreme Court

96 S.W. 393

79 Ark. 475

HARTFORD FIRE INSURANCE COMPANY v. ENOCH

Supreme Court of Arkansas

July 2, 1906

Appeal from Howard Circuit Court; James S. Steel, Judge; affirmed.

STATEMENT BY THE COURT.

This is a suit by appellee on a standard policy of fire insurance. The complaint alleged the issuance of the policy, the loss, a compliance by appellee with the requirements of the policy as to notice and proof of loss, and prayed for judgment in the sum of $ 1,250, the amount of the policy with interest.

Appellant answered, denying all material allegations, and set up "that the policy in suit provides, inter alia, that the entire policy shall be void and of no force if the interest of the insured be other than unconditional and sole ownership, and that the interest of said S. Enoch, to whom said policy was issued at the time of the alleged fire, was not an unconditional and sole ownership. That the policy also provided that if the building should be located on ground not owned by assured in fee simple the policy should be void, and that plaintiff was not the owner in fee simple of the land upon which the building was located."

Appellant also set up a plea of res judicata, alleging "that, by the judgment and determination of the Supreme Court, the policy of insurance was declared and adjudged void, and that the requirements to furnish proof of loss had not been waived. Appellant, to support the plea of res judicata introduced the opinion and mandate of this court on the former appeal. Hartford Fire Insurance Co. v. Enoch, 72 Ark. 47.

In that opinion, among other things, we said (p. 51): "It was shown that appellee purchased a large portion of the property insured, and destroyed by fire, conditionally; that the vendor retained title to the same until the purchase money was fully paid; and that it had not been paid. The evidence tended to prove that these facts as to the ownership of the property were discovered by appellant after the fire." We further said: "Appellee was not the absolute and unconditional owner of a part of the property insured, and the policy, according to its own terms, is void. But appellee contends that this condition was waived. The burden was upon him to prove such waiver. There could have been no waiver unless appellant at the time of the alleged waiver knew or had notice that the policy was forfeited on account of the failure of the condition. The evidence adduced for the purpose of showing a waiver was to the effect that appellant was informed that there was a lien on property for unpaid purchase money, and thereafter demanded additional proof of loss, which was furnished. That was not sufficient. The lien might have existed, and appellee might nevertheless have been the absolute and unconditional owner of the property. The evidence wholly fails to show a waiver. Reversed and remanded for new trial."

The court overruled the pea of res judicata.

Judgment affirmed.

W. C Rodgers, for appellant.

1. The circuit court erred in refusing to treat the question of the validity of the policy sued on as res judicata, for both the validity of the policy and the question of waiving its invalidity are res judicata. 56 Ark. 170; 33 Ark. 161; 26 Ark. 17; 63 Ark. 141; 80 F. 686; 27 Ohio St. 233; 20 Ohio St 315; 94 U.S. 506; 64 Md. 199; 119 Ill. 30; 77 Ga. 7; 27 N.J.Eq. 505; 70 Ga. 475; 55 Ark. 609; 67 Minn. 48; 89 Va. 503; 80 Wis. 459; 54 Minn. 75; 168 U.S. 451; 4 S.D. 487; 53 P. 6; 117 Ind. 26; 50 P. 424, and numerous other authorities.

2. The proof of loss in evidence does not state the interest "of all others" in the property. Compliance with the stipulations in the policy as to proof of loss is a condition precedent to the right of recovery. 6 T. R. 710; 13 Me. 265; 49 Me. 282; 7 Cowen, 462; 85 Md. 289; 20 Wis. 217; 48 Kan. 239; 96 Ia. 39; 60 Ark. 532; 64 Ark. 590; 65 Ark. 54; 1 Ark. Law Rep. 67; 87 F. 118; 43 Ind. 418; 91 Md. 596; 78 Cal. 468. And the court erred in refusing the tenth instruction asked by defendant. That correct proof of loss is required after submitting insufficient proof does not dispense with the necessity of proof.

3. The twelfth instruction should have been given. Contracts to insure the property of another are against public policy and void. 15 Wall. 643; 104 U.S. 775; 97 Va. 74; 92 Mich. 584; 76 Tex. 400; 9 F. 249; 46 Mich. 473; 104 Ga. 446.

4. It was error to refuse the eleventh instruction. 68 Minn. 373; 2 Wood, Ins., § 450.

5. The sixth instruction erred as to the date from which interest would run.

D. B. Sain and Feazel & Bishop, for appellee.

1. On former appeal the policy was not declared void. The extent of that adjudication was that the evidence in that case failed to show a waiver. When a case is reversed and remanded for a new trial, without any specific directions, the parties are placed where they were before there was any trial, and the lower court is free to proceed with the second trial as though there had been no trial. 29 Ark. 85; 16 Ark. 181; 70 Ark. 196; 31 Am. St. Rep. 198; 54 Am. Dec. 449; 58 Am. Dec. 296. Appellee was not precluded from introducing on the second trial any new evidence he had on the question of waiver. 71 Ark. 292. The decision of an appellate court, rendered upon a given state of facts, becomes the law of the case only as applicable to those facts. On a new trial, if the evidence is introduced establishing a new state of facts, the lower court is not bound by the decision. 46 P. 79; 45 P. 1000; 146 Ill. 71; 17 Col. 105; 134 Ind. 614; 26 Kan. 472; 33 S.W. 828; 2 Am. St. Rep. 814; 87 Am. St. Rep. 332; 65 Ib. 251; 59 Ib. 467; 29 Ib. 578; 46 Ib. 786.

2. The conditions avoiding the policy were waived by the company. Appellee's testimony is uncontradicted that he informed the agent that the title to the vehicles lay in Skillern until all the purchase money was paid. Knowledge of the agent must be imputed to the company. 65 Ark. 54; 62 Ark. 348; 52 Ark. 11; 53 Ark. 215. With this knowledge in its possession the proof shows it collected the premium, received the benefits accruing to it, has not returned nor offered to return the premium. It is in no position to ask relief. Cases supra; 65 Am. St. Rep. 717; 88 Ib. 986; 8 Ib. 384. Demanding further proof, with full knowledge of the facts constituting the forfeiture, estops appellant from setting up those facts as a defense. 53 Ark. 494; 67 Ark. 584.

3. The fourth instruction asked for by appellant was properly refused. If the proof of loss was unsatisfactory, appellant should have pointed out the defects, and, failing therein, a strict compliance with the terms of the policy was waived. 33 Am. St. Rep. 838; 31 Ib. 786; 33 Ib. 29.

4. The twelfth instruction, though abstractly good, was properly refused, because appellee had an insurable interest. 58 Am. St. Rep. 719; 63 Ib. 499; 28 Ib. 548; 12 Wend. 507; 19 Pa.St. 45; 4 Mass. 330; 21 Pa.St. 513; 17 Ib. 429. See also 74 Me. 537; 25 Minn. 229.

5. Concede error in 6th instruction, and offer to remit excess of interest.

W. C. Rodgers, for appellant in reply.

There is no pretense that the additional evidence on which appellee relies could not have been produced at the first trial. It was his duty to do so, and a refusal to do so implies bad faith. Where a policy is void for failure of assured to keep the contract on his part, the company is not required to return the premium not to tender it. 74 Ark. 507. It was held on former appeal that want of ownership in the assured vitiates the policy. See also 63 Ark. 187.

OPINION

WOOD, J., (after stating the facts.)

Appellant contends: 1. That this court decided on a former appeal that the policy in suit was void, and that its invalidity had not been waived, and that therefore its plea of res judicata should have been sustained.

In Robinson v. Thornton, 46 P. 79, it is held (quoting syllabus) that "where a judgment is reversed on appeal, and remanded for new trial, the holding of the appellate court on a question of fact, based on the evidence in the record, is not conclusive as to such question on a subsequent trial on new evidence." "The rule of the law of the case has no application to questions of fact, and nothing said on a former appeal as to the facts can bind the trial court upon a second trial, or be conclusive upon a second appeal. Where the facts appearing upon a second appeal are the same as those upon a former appeal, the legal effect of the facts is determined by the decision on a former appeal, which is the law of the case for the second appeal." Benson v. Shotwell, 103 Cal. 163; Wallace v. Sisson, 114 Cal. 42, 45 P. 1000; Eckert v. Binkley, 134 Ind. 614, 33 N.E. 619.

When on an appeal or writ of error a cause is reversed and remanded for new trial, the case stands as if no action had been taken by the lower court. Harrison v Trader, 29 Ark. 85; Heard v. Ewan, 73 Ark. 513, 85 S.W. 240. If the facts developed on second trial remain the same as they were on the first trial, the lower court must be governed in applying the law to the facts by the principles announced by this court in that case as controlling. If the facts are different, then the lower court may apply a different rule of law. It follows that the trial court did not err in overruling the plea of res judicata, and in refusing requests by appellant for instructions covering same proposition as set up in plea. The proof as to the title to the property in the present case was the same as on a former trial, and therefore what we said on the former appeal as to the policy being void on account of the false warranty by appellee that he was the sole and unconditional owner of the property insured was and is the law on that subject. But, on the question of whether or not this condition that avoided the policy and worked a...